Brunson v. Capitol CMG, Inc.

• Decision Date: 29 September 2021
• Docket Number: 3:20-cv-01056
• Parties: LISA BRUNSON, Plaintiff, v. CAPITOL CMG, INC., et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

LISA BRUNSON, Plaintiff,
v.
CAPITOL CMG, INC., et al., Defendants.

No. 3:20-cv-01056

United States District Court, M.D. Tennessee, Nashville Division

September 29, 2021

MEMORANDUM OPINION

ELI RICHARDSON, UNITED STATES DISTRICT JUDGE

Pending before the Court are two motions (collectively, the “Motions”): (1) a motion to dismiss pursuant to Rule 12(b)(6) (Doc. No. 24, “Publishers' Motion”) filed by Defendants Capitol CMG, Inc. (“Capitol CMG”) and David C. Cook d/b/a Integrity Music (“Integrity Music”), supported by a memorandum of law (Doc. No. 24-3, “Publishers' Memorandum in Support”); and (2) a motion to dismiss pursuant to Rule 12(b)(6) (Doc. No. 39, “Sinach's Motion”) filed by Defendant Osinachi Kalu Okoro Egbu's (“Sinach”), ^[1] supported by a memorandum of law (Doc. No. 40, “Sinach's Memorandum in Support”). Plaintiff filed responses to both Motions. (Doc. Nos. 26, 43, each a “Response” and collectively “Responses”.) Defendants Capital CMG and Integrity Music replied to Plaintiff's Response to Publishers' Motion. (Doc. No. 27, “Publishers' Reply”). Sinach did not reply to Plaintiff's Response to Sinach's Motion. The Motions are ripe for review.

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For the reasons discussed herein, the Court will deny both Motions.

BACKGROUND^[2]

Plaintiff is a traveling musician and congregational worship leader. (Doc. No. 1 at ¶ 4). Sinach is a Nigerian gospel music performer. (Id. at ¶ 5). Integrity Music and Capitol CMG (“Publishers”) are the publishing administrators for the disputed work in this matter. (Id. at ¶ 6-7).

On or around April 7, 2016, Sinach debuted the song “Waymaker” (“Sinach's song”)^[3] on an independent release from Nigeria. (Id. at ¶ 8). In June 2017, while singing Sinach's song at a worship service, Plaintiff created a “new lyric and melodic composition . . . composed of 78 words, [with] some words repeating. (Id. at ¶ 11). Plaintiff essentially incorporated her bridge into Sinach's song by removing Sinach's original bridge and inserting her bridge (the “disputed work”). (Id. at ¶ 14). Plaintiff again performed the disputed work in August 2017. (Id. at ¶ 15). Plaintiff's composition (“Plaintiff's bridge”)^[4] is as follows:

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(Image Omitted) (Id. . at ¶ 12).

Plaintiff alleges that after her performances, the disputed work began being copied under Sinach's composition name “Waymaker” and garnered millions of YouTube views. (Id. at ¶ 16). The disputed work was then covered by top Christian music artists, including one of Integrity Music's artists “Leeland.” (Id. at ¶ 17). Plaintiff claims that the “large-scale public releases” of the disputed work put her on notice of Defendants' infringing acts. (Id.). Plaintiff registered her bridge for copyright on May 12, 2020: registration number Pau004024415. (Id. at ¶ 13).

Plaintiff contends that Integrity Music and Capitol CMG, as publishing administrators, had knowledge of her existing copyright and allowed the disputed work to be exploited by their artists. (Id. at ¶ 18). On October 8, 2019, Plaintiff sent a demand letter to Defendants requesting their “proportional income stream” from the disputed work. (Id. at ¶ 22). Integrity Music responded that

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the disputed work is considered a “prayer language” and is thus not copyright registerable. (Id. at ¶ 23).^[5]

Plaintiff's claims are (i) federal copyright infringement as to Publishers, (ii) contributory and vicarious copyright infringement as to Publishers, (iii) vicarious copyright infringement as to Sinach, and (iv) violations of the Digital Millennium Copyright Act as to Publishers.

LEGAL STANDARDS

A. Copyright Infringement

Federal law provides a cause of action for any copyright owner against anyone who infringes the copyright by violating an “exclusive right” of that copyright owner. 17 U.S.C. § 501. The exclusive rights of a copyright owner include the rights to reproduce the copyrighted works; to prepare derivative works; to distribute copies by sale, rental, lease or lending; and to display the copyrighted work publicly. 17 U.S.C. § 106. “A plaintiff alleging copyright infringement must prove that (1) it owns or is the exclusive licensee of a valid copyright and (2) the alleged infringer violated at least one exclusive copyright right prescribed by 17 U.S.C. § 106.” Average Joe's Entm't Grp., LLC v. SoundCloud, LTD., No. 3:16-cv-3294, 2018 WL 6582829, at *2 (M.D. Tenn. Oct. 17, 2018). The Tenth Circuit has stated the elements somewhat differently. See Enter. Mgmt. Ltd., Inc. v. Warrick, 717 F.3d 1112, 1117 (10th Cir. 2013) (“There are two elements to a copyright infringement claim; a plaintiff must show both ownership of a valid copyright, and copying of protectable constituent elements of the work.” (citations omitted)). The Tenth Circuit's articulation is helpful here because it highlights the very basis for Defendants' argument here: that an

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infringement claim will lie only as to a protected work (and then only as to the particular protectable constituent elements of the protected work).

B. Motion to Dismiss

For purposes of a motion to dismiss, the Court must take all of the factual allegations in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 679. A legal conclusion, including one couched as a factual allegation, need not be accepted as true on a motion to dismiss, nor are mere recitations of the elements of a cause of action sufficient. Id.; Fritz v. Charter Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010), cited in Abriq v. Hall, 295 F.Supp.3d 874, 877 (M.D. Tenn. 2018). Moreover, factual allegations that are merely consistent with the defendant's liability do not satisfy the claimant's burden, as mere consistency does not establish plausibility of entitlement to relief even if it supports the possibility of relief. Iqbal, 556 U.S. at 678.

In determining whether a complaint is sufficient under the standards of Iqbal and its predecessor and complementary case, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), it may be appropriate to “begin [the] analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. This can be crucial, as no such allegations count toward the plaintiff's goal of reaching plausibility of relief. To reiterate, such

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allegations include “bare assertions, ” formulaic recitation of the elements, and “conclusory” or “bold” allegations. Id. at 681. The question is whether the remaining allegations - factual allegations, i.e., allegations of factual matter - plausibly suggest an entitlement to relief. Id. If not, the pleading fails to meet the standard of Federal Rule of Civil Procedure 8 and thus must be dismissed pursuant to Rule 12(b)(6). Id. at 683.

As a general rule, matters outside the pleadings may not be considered in ruling on a motion to dismiss under Rule 12(b)(6) unless the motion is converted to one for summary judgment under Rule 56. Fed.R.Civ.P. 12(d). When a document is referred to in the pleadings and is integral to the claims, it may be considered without converting a motion to dismiss into one for summary judgment. Doe v. Ohio State Univ., 219 F.Supp.3d 645, 652-53 (S.D. Ohio 2016); Blanch v. Trans Union, LLC, 333 F.Supp.3d 789, 791-92 (M.D. Tenn. 2018).

DISCUSSION

A. Publishers' Motion

Via the Motion, Publishers move for dismissal pursuant to Rule 12(b)(6), arguing in essence (albeit by using misguided references to the inapposite concept of lack of “standing”)^[6]that Plaintiff cannot establish a valid copyright claim because, according to Publishers: (i)

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unauthorized derivative works are not copyright protectable (Doc. No. 24-3 at 6-7); and (ii) Plaintiff's bridge is an unauthorized derivative work (Id. at 7-12). Although the Court agrees with Publishers that unauthorized derivate works are not copyright protectable, it disagrees with Publishers' notion that...